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2011 DIGILAW 552 (ORI)

Gurucharan Bhoi v. State of Orissa

2011-11-14

B.K.PATEL, L.MOHAPATRA

body2011
JUDGMENT L. MOHAPATRA, J. - The petitioner in this Writ Petition assails the order of the Divisional Officer, Rairakhol Division dated 09.11.2006 under Annexure-5 rejecting his application for removal of forest growth from Plot No.629 under Khata No.14 of Village-Kaudiapali in the district of Sambalpur as well as the order dated 21.11.2009 under Annexure-8 passed by the Appellate Authority, the Conservator of Forests, Sambalpur Circle confirming the order passed by the Divisional Forest Officer. 2. The case of the petitioner is that his father late Raghunath Shoi was the co-owner and Records of Right holder of 17 plots recorded in Sabik Khata No.14 of Village - Kaudiapali. Out of the said 17 plots, Plot No.629 extends to an area of AC.5.30 decimals and there is growth of 119 nos. of Sal, Bija, Dhubani and Tentuli trees. It is the further case of the petitioner that said Plot No.629 is a 'Raiyati' plot and is situated on the side of village road surrounded by private agricultural land of the villagers. On the side of the aforesaid plot, Village - Rangmatia is situated. With an intention to remove the trees for the purpose of converting the plot into agricultural land and also to plant new trees, his father applied to the Divisional Forest Officer-opposite party No.2 for grant of permission to remove the trees from the said plot along with his brother, who was the co-owner. The father of the petitioner expired on 25.2.2006 where after the petitioner took up the matter before the Divisional Forest Officer by substituting himself. The application for grant of permission to remove the trees was kept pending and no orders were passed. 3. The petitioner, therefore, approached this Court in W.P.(C) No.12116 of 2006 for early disposal of the same. The said Writ Petition was disposed of on 12.9.2006 with a direction to the Divisional Forest Officer-opposite party No.2 to consider the application filed by the father of the petitioner and pass orders thereon within two months from the date of communication of the order. 4. In compliance of the aforesaid order the Divisional Forest Officer-opposite party No.2 conducted a field enquiry in presence of the petitioner on 31.10.2006. 4. In compliance of the aforesaid order the Divisional Forest Officer-opposite party No.2 conducted a field enquiry in presence of the petitioner on 31.10.2006. In Annexure-5, opposite party No.2 rejected the petition on the ground that the trees standing on the plot have not been planted and the canopy is in the continuous belt of natural forest adjoining to 'Sagjhori Reserve Forest'. It was further observed by the Divisional Forest Officer-opposite party No.2 that green felling in the above plot will disturb the habitat of wild life, increase soil erosion and increase adverse effect on environmental condition. It was also observed in the said order that the application attracts the provisions of Forest Conservation Act, 1980. 5. Challenging the said order the petitioner preferred an appeal but the appeal was also dismissed on 21.11.2009 under Annexure-8 on similar findings with reference to the judgment of the Hon'ble Supreme Court in the case of T.N. Godavarman Thirumulkpad v. Union of India and others reported in AIR 1997 SC 1226. 6. According to learned counsel appearing for the petitioner, the plot in question is a 'Raiyati' plot and the 'kissam' thereof has been indicated as 'Atta Sadharana'. The boundary description in the Records of Right also shows that there is a road in between the plot and the reserve forest. Relying on the entry in the Records of Right, it was contended by learned counsel for the petitioner that the canopy over the plot is not in continuous belt of natural forest adjoining to 'Sagjhori Reserve Forest' as observed by the Divisional Forest Officer-opposite party No.2 and the reserve forest is separated by road. Learned counsel for the petitioner also with reference to the above decision of the Hon'ble Supreme Court submitted that the growth over the plot in question does not come within the meaning of 'forest' and therefore, the Forest Conservation Act, 1980 has no application. 7. A counter affidavit has been filed by the Divisional Forest Officer-opposite party No.2 wherein it is stated that the trees standing on the plot in question are naturally grown and not planted therefore, it attracts the provisions of Forest Conservation Act, 1980 and for removal of trees from the said plot prior approval of the Central Government is required. Accordingly, the Appellate Authority has requested to apply for prior approval from the Central Government. Accordingly, the Appellate Authority has requested to apply for prior approval from the Central Government. It is further stated in the counter affidavit that out of 119 nos. of different types of forest species applied for removal, 110 nos. of Sal tree's are there and it cannot be considered to be a planted one since hardly there is any incidence of successful Sal plantation. The fact that the plot is owned by the petitioner has not been disputed in the counter affidavit. It is also contended in the counter affidavit that the growth of trees on the disputed plot come within the meaning of 'forest' and therefore, prior approval of the Central Government is required for removal of the trees. 8. Undisputedly the petitioner is co-owner of Plot No.629 extending to an area of AC.5.34 decimals having 119 nos. of trees standing thereon. The Records of Right annexed to the Writ Petition as Annexure-1 shows that Plot No.629 has been recorded as 'Atta Sadharana'. The description of the boundary appearing in the Records of Right also shows that there is a road in between the said plot and the forest. The petitioner being the owner of the plot and the trees standing thereon had submitted an application for grant of permission to remove the trees. As stated earlier the Divisional Forest Officer - opposite party No.2 as well the Appellate Authority did not grant permission and rejected the application on the ground that the canopy in the recorded plot is in continuous belt of natural forest adjoining to 'Sagjhori Reserve Forest'. This observation of the Divisional Forest Officer and the Appellate Authority do not confirm the entry made in the Records of Right. The Records of Right clearly shows that in between the reserve forest and the plot, there is a road dividing both and accordingly continuity of the natural forest adjoining to 'Sagjhori Reserve Forest' does not appear to be correct specially with reference to the entry made in the Records of Right. 9. Even if it is held that trees standing on the plot are not contiguous to the reserve forest and the reserve forest and the plot are divided by a road, the petitioner cannot be granted permission for removal of the trees without approval of Central Government, if the nature of growth of the trees over the said plot come within the meaning of 'forest'. In this connection reference be made to the decision of the Hon'ble Supreme Court in the case of T.N. Godavarman Thirumulkpad v. Union of India and others reported in AIR 1997 SC 1226. The Hon'ble Supreme Court in the said decision has observed as follows :- "The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership of classification thereof. The word 'forest' must be understood according to its dictionary meaning. This description covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the purpose of Section 2 (i) of the Forest Conservation Act. The term 'forest land’ occurring in Section 2, will not only include 'forest' as understood in the dictionary, sense, but also any area recorded as first in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambika Quarry Works v. State of Gujarat, (1987) 1 SCC 213 : AIR 1987 SC 1073 , Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Suppl (1) SCC 504 : AI R 1989 SC 594, and recently in the order dated 29th November, 1996 in W.P.(C) No.749/95* (Supreme Court Monitoring Committee v. Mussorie - Dehradun Development Authority....." It is clear from the said decision that the Forest Conservation Act, 1980 was enacted with a view to check further deforestation, which ultimately results in ecological imbalance and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word 'forest' must understood according to its dictionary meaning. 10. The word 'forest' must understood according to its dictionary meaning. 10. Therefore, even if we accept the case of the petitioner that his father had planted the trees on his private plot, if the growth of the trees over the plot come within the meaning of 'forest', the Forest Conservation Act shall have application. The said decision of the Hon'ble Supreme Court was relied upon by this Court in the case of Bhagawan Bhoi v. State of Orissa and others reported in AIR 2002 Orissa 201 and it was held in paragraph-7 of the judgment that there cannot be any doubt that the Forest (Conservation) Act would apply to any forest land whether declared as private forest or not and whether the forest is a reserve forest or not. Once it is found that the land satisfies the description of being a forest land, it has to be taken that the Forest (Conservation) Act would have application and no permission to fell trees could be granted without prior concurrence" Ice of the Central Government. 11. Learned counsel for the petitioner relied on a decision of this Court in the case of Dr. Jaykrushna Patnaik v. Divisional Forest Officer, Ghumsur North Division, Bhanjanagar and another reported in 2005 (II) OLR 40 . In the said reported case the petitioner therein and some others were the owners of a piece of land and the petitioner therein had applied for issuance of Timber Transit permit for removal of the trees standing over the plot. During enquiry it was found that 111 nos. of trees of Sal and Teak variety were standing over the plot. The Forest authorities held that the Forest Conservation Act has application and rejected the application for grant of Timber, Transit permit. Referring to the decisions cited above and others decisions of the Hon'ble Supreme Court this Court in the concluding paragraph held that the ban or restriction on felling trees contemplated in Section 2 of the Forest Conservation Act, 1980 shall not apply to any private plantation/orchard/bagan comprising of trees planted in any area which is not a forest. The ban shall also not apply to lease hold land irrespective of date of grant of lease or date of acquisition of title, if the land was not converted from an earlier forest. 12. The ban shall also not apply to lease hold land irrespective of date of grant of lease or date of acquisition of title, if the land was not converted from an earlier forest. 12. In OXFORD Advanced Learners's Dictionary the word forest' has been expressed in the following manner:- ‘A large area of land that is thickly covered with trees; a tropical forest'. 13. There is no conflict between the two decisions referred to earlier and the present decision to the extent that if the trees planted do not come within the meaning of forest, the Forest Conservation Act, 1980 shall have no application. In the present case neither the Divisional Forest Officer nor the Appellate Authority has given any finding as to whether the growth of trees over the private plot of the petitioner come within the meaning of 'forest' or not. All that the authorities have observed is that the trees standing over the plot in question are in continuation of a reserve forest, which is not borne out from the record, as discussed earlier. It is therefore, necessary for the authorities to inspect the plot in question afresh and find out as to whether it is a part of the reserve forest or not. If it is not a part of the reserve forest and there is no continuity, the said plot being separated by a road the nature of growth has to be examined to find out as to whether such growth can come within the purview of meaning of 'forest' or not. If it does not come within the meaning of 'forest' there is no bar in granting Timber Transit permit. Only when it comes within the meaning of 'forest' the petitioner may be required to get approval of the Central Government. 14. We therefore, set aside both the orders under Annexures-5 and 8 and remit the matter back to the Divisional Forest Officer - opposite party No.2 to conduct an enquiry afresh specially with reference to the observation made in this judgment and the Records of Right under Annexure1 and take a decision as to whether the nature of growth of trees in the plot in question attracts the meaning of 'forest' or not. If it does not attract the meaning of 'forest', there is no reason to reject the application of the petitioner. The Writ Petition is disposed of accordingly. I agree. If it does not attract the meaning of 'forest', there is no reason to reject the application of the petitioner. The Writ Petition is disposed of accordingly. I agree. Petition disposed of.